Proposed Changes To UK Copyright Law Sensible But Require Gov't Request If You Want To Circumvent DRM

from the grateful-for-small-mercies dept

Techdirt has been covering the UK's long-running saga of attempted copyright reform for some years. Most recently, we wondered whether even the Hargreaves Review's moderate suggestions would survive in the face of the usual frenzied lobbying from the copyright industry. Rather remarkably, they have, and the UK government has published a list of the legislative changes it proposes to make (pdf).

These are welcome but hardly revolutionary -- more a matter of dragging UK copyright law into the 21st century. They include:

a private copying exception that lets people make copies of content they have bought, but only for their personal use;

simpler rules for using copyright material in the education sector;

permission for the limited quotation of copyright works for any purpose, as long as the source is acknowledged;

a limited copying exception for parody, caricature and pastiche;

a research and private study exception;

permission to use published research results for data analysis, but only if it is for non-commercial purposes;

permission for people with disabilities to obtain copyright works in an accessible form if there is none on the market;

archiving and preservation exceptions, designed for museums, galleries and libraries;

wider exceptions for public bodies to share some third-party information online.

The government document provides plenty of background information on its thinking, and why it chose to make the exceptions it did. Along the way, it offers some fascinating insights into the submissions from the copyright companies, and how they attempted to stave off change once more. For example, perhaps aware that it would be unable to convince the UK government not to bring in a range of minor exceptions for the public, the copyright industry seems to have adopted a fallback position based around licensing contracts. Here's the issue:

One of the arguments made by creators and rights holders in consultation was that licensing should always preclude or override any exception to copyright: if there is a licence then people should purchase it.

If that reasoning were allowed, it would effectively gut all the new exceptions, since they could always be overridden by licensing contracts imposed on users. Apparently, some went even further:

Some responses to consultation suggested that allowing unlicensed use of works when a licence was available was necessarily a violation of the [Berne] three-step test. The Government believes this view to be incorrect, as the requirement of the three-step test is that the law "does not unreasonably prejudice the legitimate interests of the author", or conflict with the "normal exploitation" of the work.

As the UK government pointed out:

To argue that all exploitation of a work is "normal exploitation" is to reduce the three-step test to two steps, which is manifestly not its intent. Furthermore, a licensing override is potentially inequitable to users: some could be forced to buy licences for uses much broader than the permitted act in question, while others -- where there was no licensing scheme in place -- would pay nothing.

On the other hand:

users and institutions serving users felt that a failure to address the possibility of contract override could and did render permitted acts meaningless, and their benefits wholly or partly unrealised. They argued this was a problem now. Consumers were not in any position to negotiate the terms on which copyright goods were sold or licensed, and even larger users such as institutions argued that negotiation was so resource-intensive as to be effectively impossible as a general rule; prices were not transparent and there was little or no choice of supplier.

Fortunately, the UK government agreed:

to the extent that is legally allowed, the Government will provide for each permitted act considered in this document that it cannot be undermined or waived by contract. This may include a prohibition on licensing override of permitted acts, or restricting the terms on which licensing may impact on permitted acts. The aim is not to establish contract as superior to permitted act or vice versa, but to ensure licensing does not restrict acts that are beneficial to society as a whole.

However, there is one area where the proposals fall short: dealing with DRM, or "technical protection measures" (TPM) as the document puts it. The problem is that DRM, like contracts, could easily block many of the new exceptions that the UK government is proposing. Unfortunately, European law does not allow the UK government simply to grant users the right to circumvent DRM in such cases. Instead, there is an incredibly clumsy and inconvenient procedure that must be followed:

In the UK, if a person cannot carry out a permitted act due to a TPM, and the rights holder has refused to provide a 'workaround', the mechanism used is that a user may issue a notice of complaint to the Secretary of State (SoS). The SoS can issue 'directions' to ensure that the permitted act can be carried out.

In other words, if you want to make a backup of an ebook, or transfer a music file to another medium, but are stymied by DRM, you have to write directly to the minister concerned, and ask him or her to contact the copyright holder to provide a copy in some way. Convenient, no?

This ridiculous approach, which will inevitably be ignored by most people as they continue to turn to "alternative" channels to access material they have paid for, is a consequence of the 2001 European Copyright Directive (the European equivalent of the DMCA), which places limits on what the UK government may do in the area of TPMs.

The fact that the UK government is being forced to adopt such a manifestly impractical solution to DRM's override of the proposed copyright exceptions is a stark reminder of the effect other treaties like ACTA and TPP would have, since these too will oblige all signatories to adopt certain minimum legal requirements for copyright and other areas whether or not they think them reasonable or wise. Indeed, it's clear that the copyright maximalists have shifted their attention to such multilateral treaties because they neatly circumvent democratic discussions that can happen within individual nations, substituting instead secret negotiations behind closed doors that members of the public can't even follow, much less influence.

Given these constraints, the UK government has perhaps done the best it could as far as DRM is concerned. The same could be said about the rest of the proposals. None of them is radical or revolutionary, but the fight that it has taken to get them is a reflection of the extraordinary success the copyright companies have had in blocking even the mildest attempt to update copyright legislation in the UK and make it fit for the digital age.

The UK government has stated that it wants to bring the new exceptions into force by October 2013. After all these years, that day cannot come soon enough.

A small improvement indeed but necessary in the long run, changes like those will show the rest of the world how a society can work without extreme copyright protectionism. Now I wonder how the copyright cartels will respond to this.

'This ridiculous approach, which will inevitably be ignored by most people as they continue to turn to "alternative" channels to access material they have paid for'

I'm actually hoping every single person for whom this problem comes up does in fact submit a notice like they are supposed to, as I bet if the SoS gets swamped by thousands, if not hundreds of thousands of notices every single month, that might actually get some attention brought to the problem.

When VCRs were first introduced in the UK, a number of conditions were legally applied to try and alleviate the studios' concerns. One of these was that anything recorded from a broadcast source should only be kept for a maximum length of time (around 6 months, IIRC) before being erased. Anything kept beyond this time was breaking the law. I'm sure you can guess how many of the general public stuck to that, and the law effectively became ignored once authorities realised how utterly unenforceable it was in any realistic sense.

I'd expect any requirement to get permission from the government before viewing the content you've legally purchased to be met with the same level of compliance.

Re:

We all know how the Radio killed the Music Industry and how the VCR killed the Movie Industry... it's really a pity that due to those two inventions we don't have any new music or movie produced today :(

Actually the UK proposal is unnecessarily restrictive in terms of protection of TPMs. Other EU countries are much more flexible in their interpretation of this; for example, some allow (or, at least, do not explicitly prohibit) non-commercial distribution of circumvention software, and many exclude pure access controls (e.g. region codes) altogether from protection. The UK, perhaps oddly for a nation with such a strong Eurosceptic strand in its politics, has a tendency to gold-plate EU legislation: slavishly implementing every obligation, and often going well beyond them (i.e. if EU law says to implement restriction X in situations Y and Z, then UK will implement this to make X law in all cases). It also often does not implement permitted easements on EU law (even when the UK government itself argued for them).
This is not to say that the EU Copyright Directive is OK. It should be reformed, to explicitly permit circumvention for non-infringing access or 'fair use' copying. Arguably some other countries are stretching the permitted exceptions to TPM protection in their implementation, but so far they have not been challenged. But the UK could go a lot further in making meaningful exceptions to anti-circumvention law, even within the countours of existing EU legislation.

Re:

On DRM confusion, and the limitations of the new exception

The UK law on circumvention is also a bit odd and there is some confusion (at least, I am confused) as to what is actually legal as the law is phrased ambiguously (always helpful).

What the law does is give extra people the right to sue you if you circumvent DRM (or "effective technological measures" and "rights management information"). However, it is unclear whether this is simply giving these people the right to sue for some underlying copyright infringement, or for the mere circumvention.

Interestingly, one of the text-books I looked at suggested it was different with technological measures and rights management information - despite the wording being remarkably similar.

The personal copying exception is also being phrased in a way to make it pretty meaningless anyway:

[it] only allows copies to be made by and for a person who lawfully owns an original copy... includ[ing] downloaded digital content that has been purchased to keep (or licensed in an analogous way) such as eBooks or film downloads, but not rented or streamed materials. [Emphasis added]

My reading of that is that all the publisher needs to do is license the content for a limited time (200 years should be enough) and the exception won't apply - and given the recent rulings on resale coming out of the EU, they may be doing this anyway.

There is some nice stuff in the report, though, including this gem:

In the interests of transparency, any restrictions on use enforced by TPM should be made clear to consumers up front, at the point of sale.

I imagine this won't be done using big DRM warnings, but is still rather similar to the Pirate Party manifesto - and might drive home how widespread (and how utterly futile) most DRM is.

Still, it's nice to think that by the end of 2013 the Government may have finally got around to implementing this exception, first recommended by the Gowers Review in 2006, and really needed as far back as the mid 90s (when I remember people ripping CDs and VHS soundtracks to cassette tapes for personal use) - 20 years behind for Government isn't that bad...

so, just as in the USA, it will be legal to make a 'backup' of a legally owned disk, but illegal to bypass any protection on that disk. what the fuck is the point of that? yet again, the entertainment industries are ruling the roost, are dictating what customers can and cant do with their purchased products. this is all down to the various governments anyway. had they done what they should have, instead of allowing exactly what the industry wanted to do, by being 'lobbied' (read bribed here!) the situation would never have arisen anyway. talk about shoot yourself in the foot! using sensible options years ago, rather than just what certain self-interested execs wanted and the situation wouldn't need new laws now. thick as fuck!!

Well, I have taken all my Amazon bought e-books off my Kindle, stripped the DRM, converted them to a more widely recognised format and have them backed up in different locations, and I DON'T GIVE A DAMN. I bought them with my own money and should be able to do what I want with them for my own use, and I am not sharing them.

Re:

Yeah it is actually a quite estute observation. The most responsive and the best countries at keeping deadlines in EU has the most EU-sceptic populations in the union. Denmark has been slacking a bit lately, but is still among the best at keeping up with the EU bureaucracy. Denmark has several exemptions that the prime ministers (both sides) are trying to bite their own arm off to talk down. About 7 % want the EURO at the moment and even politically the finance union and the european patent court are extremely likely to get kicked to a popular majority vote (needs more than 50 % of the population able to vote to say yes independent of voter-turnout!). The patent court has about a snowballs chance in hell to pass the vote and the finance supervision union is doubtful since the danish equivalent is lightyears better than the proposed EU supervision!

Re: Re:

Some information on EUCD implementations can be found athttp://www.fipr.org/copyright/guide/index.htm
(not updated recently, may be out of date)
Finland's law specifically excludes DVD region locks from protection, as well as TPMs that can be trivially circumvented, e.g. using marker pens. It appears that CSS was initially deemed "ineffective" under their law, but this was overturned by a higher court. The law does not prohibit personal use of circumvention tools for private purposes. Norway (which had to implement EUCD under its "fax democracy" relationship with the EU) explicitly excludes such personal/private uses for the purpose of playback on "on relevant playing equipment".
Germany bans distribution but not possession of circumvention tools. In the Netherlands, circumvention *acts* are not illegal. Switzerland (also subject to fax democracy) also allows circumvention acts (and non-commercial distribution) for lawful purposes.

censorship

Of course, Glyn, this is the same consultation that I've been having the censorship issues (http://www.techdirt.com/articles/20120729/02544819867/uk-government-censors-copyright-consultation- submission-about-how-awful-collection-societies-are.shtml) with them. Where it seems any 3rd party source or critisism from anyone not a big company, a regular submittor, or a lawyer was going to be censored, according to what little they've said in response to a FOI request (http://www.whatdotheyknow.com/request/discussions_on_redactions_in_col#incoming-332796).

US copyright law

I would like it if the U.S changed its copyright laws to be less strict. They are way to strict. Under current law many Americans are copyright infringers. I started a petition on the white house.gov site if any one is intrested. I need to have 150 signatures before it can be searchable on the site.So people can only sign it using the link.